Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-12-10
BATES VS.. PORTER
DECISION CONCERNING SACRA.
MENTO WATER WORKS FUNDS.
The Supreme Court Gives to the
BondhoIders SO Per Cent. of
Gross Receipts.


the State Supreme Court in bank, the
majority of the Court rendered the follow
Ing opinion in favor of the bondholders;
Bates Us. Porter, Treasurer of the City of
Sacramento (No. IL 75).-This is an appli-
cation for writ of mandate to command
the respondent to set apart and appropriate
to a fund known as the sinking fund So
per cent. of all moneys received by him
collected for water rents in the city of Sacra-
mento.
1t is urged on behalf Of respondent that
the Treasurer is bound to set apart the net
receipts of the moneys above mentioned;
that IS, what remains of such receips after
deducing therefrom various items of ex-
pense in conducting the water works, in
Cluding salaries of its officers and en-
ployes. The contention of appellant is
that the respondent is bound to set apart
the gross receipts, without deducting any
thing.
We are of the opinion that the conten-
ton Of appellant is sustained by the law,
which we shall proceed to show
The city of Sacramento was incorporated
by al Act passed on the 9th of February.
1850. (See Stats 1850, p. 70) This Act is
referred TO in the opinion in the case of
Meyer rs. Brown, 60 Cal, 583, and some of
the features of the organization of the CITY
dIG tdcic Ocldiltu lOeC. %, Oal, OS4 J
This Act was amended as to the fifth and
twentieth sections at the same session of
the Legislature by an Act passed on the
26th Of March, 1850. Stats. 1851, p. 391.
By an Act passed in 1851 Stats. 1851, d.
391), which became law by permission of
the Governor, who neither approved nor
vetoed the bill, a new Act of INCORPORATION
was enacted. This Act repealed the for
mer Acts above mentioned. (Sec. A of Act
of 1851, z. 401.) The Act of 1851 was mod
flied by the Act of April %, 1852 (see Stats
1852, D. l94), by amending the seventh and
sixteenth sections thereof. On MAY 3, 1852
(Stats. 1852 p. 1861, an Act was passed
authorizing the Mayor and Common Coun-
Gil OF the city to contract, by special ordi-
nance, III such manner as they might choose,
with any association, person or persons, to
supply the said city with water, the Act
declaring that any contract or contracts
50 made and entered into shall be valid
and binding in law" The Act of 1851
above mentioned was again amended in
1855 by the Act of 31st of March
(Stats. of 1855, p. 63) By Section of
this Act, the Common Council was empow-
cred on their first meeting after q general
election, or as soon thereafter as the same
could conveniently be done, to appoint in
such manner as the Council might pre-
scribe the following officers inter ala to
serve during the pleasure of the Council,
to wit: One Superintendent of Water
works and one Engineer of Water works
the salary of the latter officer not to exceed
$50 per month. BY Section 4 of this Act
amending Section 80 of the Act OF 1851, the
salary of the Superintendent Of the Water
works was fixed at $1,000 per annum.
Statutes 1855, p. 64.) By Section u pro-
vision was made for the collection of water
rents by the City Collector, with power in
the Common Council, by ordinance, to re-
quire the Superintendent of the Water
works TO collect the water revenue. Stats.
1850, p. CO. The powers conferred in the
Act OF Incorporation of the city on the City
Council (see Act of 1851, Sec. I, Stats. of
1851. ?. $685. and the amendatory Act of
1852, p. 1876, amending Section of Act of
1851, and the Act of May 3, 1852 above
stated, confer ample power on the authori-
ties of the city of Sacramento to erect and
maintain water works and to charge and
collect water rents.
Frequent references in subsequent Acts
OF the Legislature are made to the water
works as existing and the revenue arising
therefrom in the shape of water rents.
These may be found by examining the
statutes. On the point of authority in the
city authorities in the matter of erecting
and maintaining the works above men
toned and to collect water rents therefore
it IS unnecessary to make more particular
reference to these enactments. ALI the
statutes affecting the city and county OF
Sacramento may be found mentioned in
LIST Hittells General Laws, on pages $40,
971, 972.
Early in its existence the city became in
debte1. 1t had power to borrow money,
which it had used for purpose not i'm
proper, and ii had creditors who, as is
usually the case demanded payment. Pro-
vision was made by the Legislature en-
towering the city to fund its Indebtedness,
and 10 issue bonds therefor. The legisla-
ton on this subject, so far as regards the
case in hand (tor the action here was
brought by a creditor and bondho'der of
the city, will be referred TO in the further
progress Of this opinion.
The main question in this case turns
upon the construction of the Act of 1855
(Sfats. OF 1858, p. 267.)
This Act, entitled " An Act to repeal the
Act passed March, 26, 1851, entitled An
Act TO incorporate the city Of Sacramento,
and the several Acts amendatory and sup
Elementary thereto. and to incorporate the
city and county of Sacramento"
BY its first section the city and county of
Sacramento was consolidated, and for the
government of the territory then known as
the city and county Of Sacramento there
this Board of Supervisors and their success
sors in Office it was declared should be a
body polite and corporate under the name
and style of The City and County of Sac
ramento,' and by that name shall be known
in law. 1t was in the same section in
vested with extensive powers.
1t was further provided in the same sec
ton that the city and county shall not be
sued in any action whatever, nor any of its
lands l.,fI1fprr-
franchises. taxes, revenues, actions, chooses
IL action and effects, be subject to attach
ment, levy or sale, or any process what
ever, either mesne OF final.'
BY the second section Of this Act, the
corporation constituted by it was made the
successor of the corporation b. this Act
dissolved, and heretofore known as d" The
Mayor and Common Council of the CITY of
Sacramento 1t was declared 10 be the
owner of all the property, actions rights of
action, moneys, revenues, income and trust
at that time vested in or belonging or in
anywise appertaining to the corporation
know as " The Mayor and Common Council
of the City of Sacramento"
The Act of 1888 contains, inter ala, the
following sections
"Section u. The Treasurer of said CITY
and county shall receive and safely keep in
q secure, fire-proof vault to be prepared for
the purpose, all moneys Delpnglng 10, or
which shall be paid into, the Treasury, and
shall not loan, use or deposit the same or
any part thereof with any banker or other
person, nor pay out any part of said mon
eys, except upon demands authorized by
law, and after they have been duly audited
and ordered paid. He shall keep the key
of said vault, and not suffer the same to be
opened, except in his presence. At the
closing up of the same each day he shall
take an account, and enter in the proper
book the exact amount of money on hand !;
and at the end of every month he shall
make and publish statement in one of the
daily papers published in the city of Sacra-
mento, Of all receipts into and payments
from, the Treasury, and on what account
If he violates any of the provisions of this
section he shall be considered q defaulter,
and shall be deemed guilty of misde-
meanor in office, and he shall be liable to
removal, and shall be proceeded against
accordingly; if he loan or deposit said
moneys, or any part thereof, contrary TO
the provisions of this section, or apply the
same to his own use, or to the use of any
other person, in any manner whatsoever,
or suffer the same to 60 out of his personal
custody. except in payment of audited de-
mands upon the Treasury, lie shall be
deemed guilty of felony, and On conviction